18th Mar 2022
The Appellant was admitted as a solicitor in November 2002 and was a salaried partner at Gibson, Dunn & Crutcher LLP (“the Firm”) from April 2012 to April 2015. At all material times he practised principally from the Firm’s office in Dubai. This is an appeal from an order of the Solicitors Disciplinary Tribunal (“the SDT”) that he be struck off the Roll of Solicitors.
The disciplinary proceedings against the Appellant related to his actions in the context of a dispute between a Mr Abdourahman Boreh and the Republic of Djibouti and two Djibouti port authorities, in which the Appellant was acting for the Djibouti authorities (“Djibouti”). One of the steps taken by Djibouti in this dispute was to bring an action against Mr Boreh in the Commercial Court in October 2012 (2012 Folio 1333), claiming at least US $77 million which he had allegedly misappropriated whilst in public office. In the course of this litigation, Flaux J (as he then was) held, on 13 November 2014 ( EWHC 3817 (Comm)), that he had been misled in granting an application for a freezing order against Mr Boreh at a hearing on 10 and 11 September 2013 (“the September 2013 Hearing”). After a 5 day hearing in March 2015 at which the Appellant gave evidence and was cross-examined (“the March 2015 Hearing”), on 23 March 2015 Flaux J then handed down a judgment ( EWHC 769 (Comm)) in which he held that the Appellant had deliberately and dishonestly misled the Court at the September 2013 Hearing (“the March 2015 Judgment”). He therefore discharged the freezing injunction part of the order which he had made, although he left the proprietary aspects in place.
The hearing before the SDT took place from 8-16 March 2021. By a decision dated 5 May 2021, the SDT upheld the following four Allegations against the Appellant:
“While in practice as a solicitor and a Partner in Gibson Dunn & Crutcher LLP (“the Firm”) and in the course of acting in litigation before the High Court on behalf of Client A:
1.1 On or about 4 September 2013, swore an affidavit in support of Client A’s application to the High Court for a freezing injunction and other orders (“the Application”) which was misleading as to matters of fact known to the [Appellant], and known by him to be material to the Application, and in doing so allowed the court to be misled…,
1.2 On or about 10 and/or 11 September 2013, during the hearing before the High Court of the Application, allowed submissions to be made to the Court by Leading Counsel acting for Client A which were known by the [Appellant] to be misleading, …..
1.3 On or about 7 November 2014, sent, or caused or allowed to be sent, written correspondence to Byrne and Partners that he knew to be misleading….;
1.5 On or about 11 November 2014, swore an affidavit in litigation before the High Court which was known by the [Appellant] to be misleading;”
With slight variations according the specific charge, the SDT broadly found that in acting as he did, the Appellant breached Principles 1, 2 and 6 of the SRA Principles 2011 and Outcomes 5.1 and 5.2 of the SRA Code of Conduct 2011. These Principles identify, respectively, duties on a solicitor to uphold the law and the proper administration of justice, to act with integrity and to behave in a way that maintains the trust of the public in the solicitor and in the provision of legal services. Outcome 5.1 requires the solicitor not to “attempt to deceive or knowingly or recklessly mislead the court” and Outcome 5.2 requires them to ensure that they “are not complicit in another person deceiving or misleading the court”.
The SDT went on to find that the Appellant had acted dishonestly in relation to each of the Allegations which it had upheld. It dismissed a further charge against the Appellant, which was Allegation 1.4.